October 16, 2017

On behalf of the Executive Committee for the Section on Professional Responsibility, I am writing to remind you about the fabulous day of events planned for the AALS Annual Meeting in sunny San Diego on Saturday, January 6, 2018. Please note the 11/30 RSVP deadline for lunch. And congratulations to scholars selected from the call for papers for both the plenary session as well as the works-in-progress session. We hope you will join us!

8:30-10:15 PR Section Plenary Session – The Ethics of Legal EducationDeans Dan Rodriguez (Northwestern Law) and Andy Perlman (Suffolk Law) as well as Dean Emeritus and Professor of Law Joan Howarth (Michigan State Law) are confirmed speakers. Two additional panelists were selected from the call for papers: David McGowan, Lyle L. Jones Professor of Competition and Innovation Law (USD Law) and Brian Tamanaha, John S. Lehmann University Professor (Washington University St. Louis Law).

11:30-1:30 PR Section Lunch and Annual Meeting, hosted by the University of San Diego Law SchoolA bus will depart the AALS hotel lobby at 11:30AM, with lunch beginning at noon, followed by the annual meeting and presentation of the Zacharias Award. The bus will return to the hotel at 1:30PM. USD Law is generously providing this lunch for our section, but you must RSVP in advance no later than November 30 in order to attend. Please RSVP to Pam Watson: phwatson@law.tamu.edu with “AALS PR Section Lunch RSVP” as the subject.

October 08, 2017

On October 5, Lisa Bloom released a statement via twitter regarding her representation of Harvey Weinstein and the Weinstein Company. She explained that she and Weinstein had been working “together on a project bringing [her] book to the screen,” and asserted that “he has always been respectful toward” her. Bloom also said that Weinstein asked her “to do a comprehensive review of his company’s policies and practices regarding women in the workplace.”

Two days later, Bloom announced (again via twitter) that she was no longer representing Weinstein (or presumably the Weinstein Company).

Bloom’s engagement on this matter may have been doomed from the start. She apparently failed to identify -- let alone explain to her clients -- her own conflict of interest in the matter. According to the New York Times, Bloom “denied that her work with Mr. Weinstein created a conflict of interest. ‘A conflict is representing two different sides in the same case.’”

As is obvious to readers of this blog, conflicts aren’t limited to situations where a lawyer represents “two different sides in the same case.”

California Rule 3-310 identifies other types of conflicts, such as when a lawyer has a business relationship with a party to a matter. Under those circumstances, the lawyer must inform a “client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client.” (emphasis added)

Here, Bloom had a pre-existing business relationship with Weinstein and the Weinstein Company: the business deal to bring her book to the screen. Bloom’s clients obviously were aware of that business relationship because it involved them directly.

But under the California Rule, Bloom had an obligation to provide her clients with a written explanation of how that business relationship could have “actual and reasonably foreseeable adverse consequences” for them – such as by affecting Bloom’s objectivity in advising Weinstein and limiting her credibility when speaking on his behalf.

While Bloom couldn’t see her own conflict of interest, others could see it. The NYT reported that Lance Maerov, a Weinstein Company board member, identified Bloom’s conflict of interest in an email to her:

“’You have a commercial relationship with TWC via a TV deal so how can you possibly provide impartial advice to Harvey or address this group with any credibility?’”

Bloom hasn’t always had such a narrow definition of conflicts of interest. Earlier this year, she asked Fox News to conduct an investigation of Bill O’Reilly’s sexual harassment of her client, Wendy Walsh. After Fox News chose Paul Weiss to conduct the investigation, Bloom complained that “because Paul Weiss has represented Fox News before, the firm has a conflict and should not serve as the investigator. She asked that Fox News assign the investigation to someone else.” (source: Law360)

In the last few days, Bloom has been subjected to public criticism -- and worse -- for her decision to represent Weinstein.

I don’t know whether Bloom sought counsel from anyone else before deciding to take on this representation, or whether she relied on her own legal ethics analysis. Her short-lived representation of Weinstein may be a cautionary tale about the danger of relying on one’s own judgment when taking on a representation that appears to be a great opportunity.

October 03, 2017

On September 28, the Supreme Court granted certiorari in McCoy v. Louisiana to consider whether the Sixth Amendment permits defense counsel to concede guilt over the express and emphatic objection of the defendant.

In affirming McCoy’s murder convictions, the Louisiana Supreme Court found that defense counsel’s concession of guilt was justified because the defendant’s proposed alibi defense “could not be substantiated, had no reasonable chance of success [and] exposed those who attempted such a defense to the charge of perjury.”

The amicus brief filed by the Ethics Bureau at Yale in support of the petition for a writ of certiorari refutes this “astonishing interpretation” of the Rules of Professional Conduct by pointing out that neither Rule 1.2 nor Rule 3.3 invests a lawyer with authority to unilaterally concede a client’s guilt because the lawyer doubts his client’s claim of innocence. As argued by amicus, the Rules provide guidance for counsel facing a request to present false evidence, but the alternative approaches to the problem do not include conceding guilt.

Justice Blackmun’s concurrence in Nix v. Whiteside reminds us that the only federal issue in cases like McCoy is whether the defendant was deprived of effective assistance of counsel. But Louisiana’s reliance on counsel’s “ethical dilemma” to justify his unilateral concession of guilt provides the Court with an opportunity to discuss Louisiana’s interpretation of its ABA based Rules of Professional Conduct.